Some European views on the Swedish tax system

The author describes some aspects of the Swedish tax aspects in light of recent developments in European law, as well as from a Dutch tax perspective. Among other things, the article covers the coupon tax, the Swedish implementation of the 30 % EBITDA rule and the investment savings account. The article also addresses the suggested changes to the coupon tax rules as a result of the Sofina case.

1 INTRODUCTION

Not hindered by any knowledge of the Swedish tax system, I recently arrived in Stockholm. When you have worked as a tax lawyer for over a decade but then have to familiarize yourself with a different tax system, this does not only cause a lot of frustration and hours of reading, it also offers some possibility to have a fresh look at a tax system and potentially a more fundamental one – compared to when I first familiarized myself with the Dutch tax system as a student.

Most of the insights I gained on the Swedish tax system are too obvious for this audience to repeat. However, there are a few insights on the Swedish tax system that I gained over the first months of reading, that relate to EU law. More in particular they relate to the European freedoms as laid down in the Treaty on the Functioning of the European Union (“TFEU”),
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being one of the few fields in tax law where I am still comfortable to act and where I get the idea of doing something relevant, also in a Swedish context.

a. Contents of this article

In the below contribution I have summarized some of the key findings of those insights.

Firstly, I will share some of my thoughts on the Swedish coupon tax in connection with the Sofina case and some insights from a Dutch point of view. Secondly, I will discuss how the Swedish implementation of the 30% EBITDA rules interact with the group contribution regime. This I will then test against the framework set by the Groupe Stéria case and share the Dutch perspective on this matter. Thirdly, I will elaborate on the taxation of funds on an investment savings account against the background of the combined cases of X, Miljoen and Société Générale, as well as from a Dutch standpoint.

I will conclude with some thoughts on what is yet to come and what would be the EU law aspects thereof.

In all the below I will give a brief description of the relevant EU provisions or case law. However, when it comes to the relevant Swedish law, I will only stick to the minimum that is relevant for clarifying the point I want to make, as I am not yet in the position to write anything meaningful on the Swedish tax law. Or, as the Dutch would say: “Who is the snack bar here; you or me?”
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b. European testing framework

Where I will test the Swedish law against the rules laid down in the European primary and secondary law, I will apply the standard framework
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as established by the European Court of Justice when testing the compatibility of a certain situation with the freedoms as laid down in the TFEU, and the prohibition of discrimination. With the risk of stating the obvious, I will briefly go into this framework so that the below should be accessible for all readers.

Firstly, it should be determined if a taxpayer has access to the TFEU. This condition is met if the presented case concerns an economic activity and a cross-border situation.
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Secondly, it should be tested whether a measure is discriminating:
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two comparable situations

treated differently

whereby the cross-border situation is treated disadvantageous

and this is not the result of a disparity

Or constituting a breach with one of the freedoms laid down in the treaty:
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Free movement of goods

Freedom of persons

Freedom of establishment

Free movement of services

Free movement of capital

Thirdly, it should be assessed if such restriction can be justified. Accepted justifying grounds are:

Lastly, if a restriction can be justified, the measure at hand should be suitable and proportional, meaning that the breach is required and should not go further than required to achieve the ground that justifies the measure.
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I understand that my findings may appear to criticize the Swedish tax system. However, I ask the reader to keep in mind that it is generally of more academic value to identify which parts of a tax system are incompatible with EU law, than to identify what is in line with the requirements of our European (tax) rules.

2 COUPON TAX

Coupon tax (’kupongskatt’)
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is a withholding tax on dividends distributed from Swedish entities to non-Swedish tax residents. In practice, Swedish residents not being able to claim the participation exemption may also be subject to the withholding of tax, but this is then in the form of an income tax that is added to their tax account. In this paragraph, I will analyse the compatibility of the coupon tax with EU law based on the Sofina case (below) and the testing framework laid down in par. 1b.

a. Sofina case

A quite recent but rather interesting case is the Sofina case, ruled by the European Court of Justice on November 22, 2o18.
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This case concerned the French dividend withholding tax, and particularly in situations where the recipients of those dividends were in loss making positions. In the Sofina case, three Belgian loss-making entities received French dividends. On these dividends, 15% French withholding tax was levied, in accordance with the Belgian-French double tax treaty. As the companies were loss-making there was no Belgian income tax against which they could credit the French withholding tax, which made the withholding tax an irrecoverable expense.

However, if the Belgian companies would have been French tax residents, they would have had the possibility to postpone taxation until the moment they get profitable again. If this would never happen, the tax would not fall due at all.

The court ruled that this was a prohibited restriction on the free movement of capital for which no justification ground existed.

b. Coupon tax regime

The Swedish coupon tax regime effectively works similar as the French withholding tax regime.

In accordance with paragraph 4 of the Coupon tax act Swedish tax residents are not subject to coupon tax. Instead, they are taxed for the dividends they receive through their income tax.

If we would compare the relevant considerations in the Sofina case with the Swedish coupon tax regime, this would lead to the following outcome:

Sofina

Coupon tax regime

Access to the TFEU

Yes: Foreign company receiving dividends from a local French company.

Yes: Foreign company receiving dividends from a local Swedish company.

Discriminating or a breach with the freedoms

Restriction on the free movement of capital: Dividends paid to non-resident companies are subject to a withholding tax of 25% (or less based on a treaty) where dividends paid to a resident company are included in that company’s tax base and subject to the general tax rules. In the event of losses, there was a deferral of that tax to a profit-making year. This constitutes a cash-flow advantage for the resident company. The exclusion of a cash-flow advantage in a cross-border situation when it is granted in an equivalent situation on national territory constitutes a restriction on the free movement of capital.

Restriction on the free movement of capital: Dividends paid to non-resident companies are subject to a withholding tax of 30% (or less based on a treaty) where dividends paid to a resident company are included in that company’s tax base and subject to the general tax rules. In the event of losses, there was a deferral of that tax to a profit-making year. This constitutes a cash-flow advantage for the resident company. The exclusion of a cash-flow advantage in a cross-border situation when it is granted in an equivalent situation on national territory constitutes a restriction on the free movement of capital.

Justification grounds

France pleaded the necessity of ensuring that tax is collected and the allocation of powers of taxation between the Member State.

Justification based on the balanced allocation of powers of taxation between the Member States: The deferral of the taxation of dividends received by a loss-making non-resident company would not mean that France has to waive its right to tax.Justification on the grounds of the effective collection of tax: The withholding tax is to minimise the administrative formalities associated with the obligation to submit a tax return. The court says that it would be for the foreign loss making entity to demonstrate that it should be entitled to a relief and that France is a party to numerous mutual assistance mechanisms. So the claimed justifications cannot be accepted.

Justification based on the balanced allocation of powers of taxation between the Member States: The deferral of the taxation of dividends received by a loss-making non-resident company would not mean that Sweden has to waive its right to tax.Justification on the grounds of the effective collection of tax: The withholding tax is to minimise the administrative formalities associated with the obligation to submit a tax return. The court says that it would be for the foreign loss making entity to demonstrate that it should be entitled to a relief and that Sweden is a party to numerous mutual assistance mechanisms. So the claimed justifications cannot be accepted.

Suitable and proportional

Not applicable as there is no justification ground accepted.

Not applicable as there is no justification ground accepted.

As per the above the Sofina argumentation can be applied without material differences to the coupon tax regime.

c. The Dutch perspective

In the Netherlands, withholding taxes are both for national and for foreign recipients, a final tax. Although they can be credited about local (personal or corporate) income tax, they can never result in a zero balance.

As a result, the Sofina case should not have any direct impact in the Netherlands.

d. Conclusion

As the argumentation of the European court on the French withholding tax regime in the Sofina case can be applied similarly to the Swedish coupon tax regime, its conclusions could potentially apply similarly as well.

On that basis it should be concluded that the levy of coupon tax in case of a loss-making recipient is a forbidden restriction of the free movement of capital for which no justification ground exists and that such loss-making entities receiving Swedish dividends should be entitled for a refund or exemption until they are generating profits again.

Quite recently, the Swedish department of finance has recognized this when they published a proposal to amend the coupon tax regime as from 2020.
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It is questionable though, if they did the right thing by publishing this proposal now, with an effective date of January 2, 2020. Many taxpayers who are in a Sofina situation (i.e. loss-making in their home state, but receiving Swedish dividends on which coupon tax was withheld), may now feel strengthened in their position and claim complete refunds.

They would be entitled to do so, from a European perspective, because the coupon tax was levied based on legislation that caused a breach with European law. In the past, the Dutch finance department has worked with the instrument of “emergency measures” to combat those unwanted interim periods of uncertainty.
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These emergency measures imply that the minister of finance publishes a decree in which the legislation is changed directly to bring it in line with the European requirements, but where he keeps the right to fill in the details of the new rules at a later stage.

A last comment, not necessarily related to the Sofina case, but in fact related to the revision of the coupon tax that is now happening in Sweden. Although arguably of little relevance for the everyday tax practice, charitable foundations that would have been exempt from Swedish income tax if they were a Swedish resident, should also be exempt from coupon tax if receiving dividends with a Swedish source. There is no reason that I can think of, why Swedish and non-Swedish charitable foundation should be treated differently.

3 30% EBITDA

The 30% EBITDA rule is a new Swedish interest deduction limitation that was proposed as a result of the Anti Tax Avoidance Directive (’ATAD).
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I will analyse the compatibility of the 30% EBITDA rule as implemented in Sweden with EU law based on the Groupe Stéria case (below) and the testing framework laid down in par. 1b.

a. Groupe Stéria

The Groupe Stéria case
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is a case of which the importance can hardly be overestimated. It basically challenges some of the key features of virtually all tax grouping regimes in Europe.

The appellant was heading a French tax group but also held subsidiaries in other member states which it could not include in the tax group. According to French law, dividends from these other subsidiaries were 95% exempt where the non-exempt 5% were to represent a fixed amount to cover ant costs and expenses that a parent company would bear for its subsidiary. If the subsidiaries would have been part of the same tax group as their parent company, the dividends would have been fully exempt. However, as the subsidiaries were not French they could not elect to be part of this tax group and therefore their French shareholder could not benefit from a 100% dividend exemption.

The court ruled that this was a prohibited restriction on the freedom of establishment for which no justification ground existed.

b. Swedish implementation of the 30% EBITDA rule

In short, the 30% EBITDA rule as implemented in Sweden is not very surprisingly limiting (net) interest deduction to 30% of the EBITDA. The part that is interesting from an EU perspective, is that if two entities are eligible for group contributions, they are also eligible to exchange interest income and expenditures for the purposes of the 30% EBITDA calculations.
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However, in order to be eligible for group contributions, you need to be a Swedish tax resident.
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So if a Swedish company with a net interest cost has a group company with excess interest income, it could be caught by the 30% EBITDA rule if the group company was foreign. However, if the company was a Swedish resident and would be eligible for group contribution, the entity could choose to transfer some of the excess interest income so that it’s group company would not be caught by the 30% EBITDA rule.

If we would compare the relevant considerations in the Sofina case with the Swedish coupon tax regime, this would lead to the following outcome:

Groupe Stéria

30% EBITDA rule

Access to the TFEU

Yes: Local company with foreign group company.

Yes: Local company with foreign group company.

Discriminating or a breach with the freedoms

Restriction on the freedom of establishment: The tax grouping regime in France was open only for French tax residents. The regime did not only provide for tax grouping but also caused certain expenditures (5% of received dividends) to be deductible which were not deductible in case there was no tax grouping. The exclusion of this benefit constitutes a restriction on the freedom of establishment.

Restriction on the freedom of establishment: The tax grouping regime in Sweden was open only for Swedish tax residents. The regime did not only provide for tax grouping but also caused certain expenditures (interest expenditures for which group companies had excess interest income) to be deductible which were not deductible in case there was no tax grouping. The exclusion of this benefit constitutes a restriction on the freedom of establishment.

Justification grounds

France claimed the existing of various justification grounds.

The allocation of the power to impose taxes between the Member States: The different treatment concerns only incoming dividends received by resident companies, so that what is concerned is the fiscal sovereignty of one Member State.The cohesion of the tax system: For this argument to work there needs to be a direct link between the tax advantage concerned and the offsetting of that advantage by a particular tax levy. The optional tax grouping does not entail any tax disadvantage for the group.

The allocation of the power to impose taxes between the Member States: The different treatment concerns only local interest expenses received by resident companies, so that what is concerned is the fiscal sovereignty of one Member State.The cohesion of the tax system: For this argument to work there needs to be a direct link between the tax advantage concerned and the offsetting of that advantage by a particular tax levy. The optional tax contribution does not entail any tax disadvantage for the group.

Suitable and proportional

Not applicable as there is no justification ground accepted.

Not applicable as there is no justification ground accepted.

As per the above the Groupe Stéria argumentation can be applied without material differences to the coupon tax regime.

c. The Dutch perspective

I believe that the Dutch legislator would have been lucky if his problems in relation to the fiscal unity, were limited to the 30% rule. One of the emergency measures mentioned in 2.d. actually related to the fiscal unity and was a direct consequence of the Groupe Stéria case. Prior to the Groupe Stéria case, and the emergency measures that were to follow, a fiscal unity for corporate income tax purposes effectively meant that the entities united in this fiscal unity were treated as if they were one. This goes way further than the mere exchange of tax losses, but also means that no transfer pricing documentation would be required (as no intercompany transactions were recognized), that interest deduction limitations applicable to intercompany interest do not apply as no intercompany interest was recognized, etc.

It is quite remarkable that the emergency measures that were to deal with the consequences of Groupe Stéria did not say a word about how the 30% EBITDA rule would be effectuated in that light – while the scope of those measures was known at the date of publication. To date, also in Dutch literature and legislative working papers, no clear line is drawn on this matter.

It is expected that the Dutch fiscal unity regime will soon be restructured more thoroughly, potentially even allowing foreign entities to be part of such fiscal unity and have them treated as if they were permanent establishments. Then, also the issues related to the 30% EBITDA should be solved. However, until that day, we can expect quite some interesting discussions on this topic in the Netherlands.

d. Conclusion

As the argumentation of the European court on the French tax grouping regime in the Groupe Stéria case can be applied similarly to the Swedish implementation of the 30% EBITDA rule, its conclusions could potentially apply similarly as well.

On that basis it should be concluded that the disallowance of transferring excess interest income from abroad to Swedish group companies with a net interest cost is a forbidden restriction of the freedom of establishment for which no justification ground exists and Sweden should accept the transfer of foreign excess interest income in the formula for calculating the interest deduction limitation in Sweden.

4 INVESTMENT SAVINGS ACCOUNT

An Investment Savings Account (“ISK”)
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is a banking product which benefts from a special type of taxation. The ISK is taxed on the basis of a fictitious yield based on the lower of a standardized interest rate or 1.25%. The returns calculated on that basis are taxed against the standard tax rate of 30%.

I will analyse the compatibility of the ISK taxation with EU law based on the Miljoen case (below) and the testing framework laid down in par. 1b.

a. The combined cases of X, Miljoen and Société Générale

In 2015, the European court of Justice ruled on a case dealing with two Belgian individuals (X and Miljoen) and one French resident company (Société Générale) that all filed an objection against the dividend withholding tax levied in the Netherlands.
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Their complaint was in short that although the 15% dividend withholding tax was the same for Dutch tax residents as well as for foreign tax residents, foreign residents could be in a worse position as they could have the 15% as a final levy, where Dutch tax residents could credit it against income tax due. So in a way this is pretty similar as the Sofina case. However, as opposed to the Sofina case, here withholding tax was levied both in the national and in the cross-border situation. The complaints related to what happened after that. Because if X and Miljoen would have been Dutch tax residents, they would have been taxed on a flat rate basis – just as with the ISK – and be able to claim the actual withholding tax as a prepayment of income tax. Then, depending on the average returns, value of the investments and any debts of that person, the effective tax may be lower than tax collected by withholding.

The court ruled that this was a prohibited restriction on the free movement of capital for which no justification ground existed.

b. The taxation of Investment Savings Accounts

The ISK regime effectively works similar as the “box 3” taxation that Miljoen and X referred to in their case: a flat rate based taxation calculated on the value of ones assets and multiplied by the standard tax rate. The difference between the ISK taxation and the Dutch box 3 taxation lies in the fact that the ISK is an actual banking product so income needs to be on a specially designated savings account in order to benefit from the flat rate taxation. In the Netherlands, all ones assets qualify for this taxation.

If we would compare the relevant considerations in the cases mentioned above (taking Miljoen as an example) case with the ISK tax regime, this would lead to the following outcome:

Miljoen

ISK

Access to the TFEU

Yes: Local assets with foreign owner.

Yes: Local assets with foreign owner.

Discriminating or a breach with the freedoms

Restriction on the free movement of capital: A withholding tax of 15% on dividends of non-resident taxpayers as a final tax burden constitutes a restriction on the free movement of capital, if the 15% is more than a resident would have paid.

Restriction on the free movement of capital: A withholding tax of 15% (assuming treaty jurisdiction) on dividends of non-resident taxpayers as a final tax burden constitutes a restriction on the free movement of capital, if the 15% is more than a resident would have paid.

Justification grounds

The Netherlands tried to justify the restriction by referring to the double tax treaty in which Belgium agreed to credit the 15% Dutch tax.

Existence of a tax treaty: The credit is granted unilaterally by Belgium in the treaty so the Netherlands cannot rely on that when claiming that it has neutralised the restriction in question.

Existence of a tax treaty: The credit is granted unilaterally by a treaty country in the treaty so Sweden cannot rely on that when claiming that it has neutralised the restriction in question.

Suitable and proportional

Not applicable as there is no justification ground accepted.

As per the above the Miljoen argumentation can be applied without material differences to the ISK regime.

c. The Dutch perspective

As the Miljoen case is Dutch, the Dutch angle to this is more easy than in the Groupe Stéria and the Sofina cases. However, the impact is much bigger than compared to the situation with the Swedish ISK. This is because of the fact that the Dutch “box 3” treatment follows automatically from the law. So in case one has savings or listed shares, they are automatically taxed based on the rules of Box 3, without having a specifically designated banking product for that purpose.

d. Conclusion

As the argumentation of the European court on the Dutch box 3 regime in the Miljoen case can be applied similarly to the ISK taxation, its conclusions could potentially apply similarly as well.

On that basis it should be concluded that the coupon tax withheld on dividends should be refunded to foreign shareholders, to the extent that the recipient of those dividends:

could have used an ISK for those shares if he would have been a Swedish tax resident, and

the effective taxation based on the ISK regime was less than the Swedish coupon tax withheld by the foreign recipient of those dividends.

5 MORE TO COME?

Hopefully the improvement of my knowledge of the Swedish tax system will make that the above insights may grow and that more insights may come. However, there are some exciting developments that may give rise to further developments regardless of my studies.

The coupon tax, as discussed above in relation to the Sofina case as well as the Miljoen case, is subject to review. It will be very interesting to see the path that the government will choose in relation to the coupon tax.

Another topic of intense EU law attention is the topic of exit taxation. The proposal for exit taxation is now off the table but the question is whether it will stay there. In particular given the requirement to have exit taxation in line with the ATAD in place as per 2020.
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Another matter that can have an EU angle to it, is the recent 3:12 case
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of which we will shortly see the aftermath in lower courts. The case deals with the question if the carried interest investments in various funds, held by partners in the advisory companies of a private equity house, should be seen as investments in closely held companies and taxed under the 3:12 rules. It is questionable if the ruling itself is based on a correct interpretation of the relevant tax rules and the facts of the case. The application of the courts view requires a rather wide use of anti-abuse rules. However, what is more interesting is that the tax authorities have changed their views on the case multiple times, over the various instances. Further, the question was accepted by the Swedish Supreme Court, which in itself rules out that the answer is obvious. However, regardless the doubt of the tax authorities and the acceptance of the Swedish Supreme Court, penalties were imposed to the partners, which implies that they should have known how to report their carried interest. The EU angle to this case is not related to the fundamental freedoms that are discussed above, but to the European Convention on Human Rights’ Article 1 of Protocol 1 (a person’s right to peaceful enjoyment of his possessions).
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Without too much details, any taxation and in particular the assessment of penalties as a result of this court case, shows quite some similarities with the Shchokin case
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in which the European Court of Human Rights said that the levy of taxation was in breach of the right of possession in case it was based on unclear and inconsistent rules. Although the Shchokin case related to tax levied directly on the basis of fiscal legislation, the same reasoning could be applied to tax levied directly on the basis of a fiscal court ruling (as in the 3:12 cases referred to).

The future will tell in which direction the EU law and the Swedish law will develop itself. I will keep studying in the meantime.

Femke van der Zeijden is a tax lawyer on secondment from PwC Netherlands to PwC Stockholm.

[1]

Armando and Cherry Duyns, Herenleed, 1978, VPRO.

[2]

The treaty on the functioning of the European Union (“TFEU”), 26-10-2012, C-326/49.

See for example https://www.pwc.nl/en/insights-and-publications/tax-news/enterprises/impact-of-emergency-repair-measures-in-Dutch-fiscal-unity-scheme-for-your-business.html, last reviewed 8 March, 2019.

[17]

Prop. 2017/18:245 as implemented in art. 24:24, SFS 1999:1229 Inkomstskattelag and Council Directive (EU) 2016/1164 of 12 July 2016 laying down rules against tax avoidance practices that directly affect the functioning of the internal market.